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Justice Ginsburg’s Dissent

Today, as Dan noted earlier, five men decided that even a nonviable fetus has more rights than a living woman. In a 5-4 decision, the Supreme Court upheld the first total ban on an abortion procedure with no exceptions for a woman’s life or health. Most so-called “partial birth abortions” are performed because a fetus is terminally ill, or to save the life of the woman. The only woman on the court, Ruth Bader Ginsburg, wrote the dissent:


Today’’s decision is alarming. … It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line… between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.
[…]

“There was a time, not so long ago,” when women were “regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution.” Those views, this Court made clear in Casey, “are no longer consistent with our understanding of the family, the individual, or the Constitution. Women, it is now acknowledged, have the talent, capacity, and right “to participate equally in the economic and social life of the Nation.” Their ability to realize their full potential, the Court recognized, is intimately connected to “their ability to control their reproductive lives.” Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’’s autonomy to determine her life’’s course, and thus to enjoy equal citizenship stature.

In keeping with this comprehension of the right to reproductive choice, the Court has consistently required that laws regulating abortion, at any stage of pregnancy and in
all cases, safeguard a woman’’s health. We have thus ruled that a State must avoid subjecting women to health risks not only where the pregnancy itself creates danger, but also where state regulation forces women to resort to less safe methods of abortion.

The Court offers flimsy and transparent justifications for upholding a nationwide ban on intact D&E sans any exception to safeguard a women’’s health.
[…]
Ultimately, the Court admits that “moral concerns” are at work, concerns that could yield prohibitions on any abortion. Notably, the concerns expressed are untethered to any
ground genuinely serving the Government’’s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. (“Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”)

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Because of women’’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

This way of thinking reflects ancient notions about women’’s place in the family and under the Constitution——ideas that have long since been discredited. …

Though today’’s majority may regard women’’s feelings on the matter as “self-evident,” ante, at 29, this Court has repeatedly confirmed that “[t]he destiny of the woman
must be shaped … on her own conception of her spiritual imperatives and her place in society.”

One wonders how long a line that saves no fetus from destruction will hold in face of the Court’’s “moral concerns. ”The Court’’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” A fetus is described as an “unborn child,” and as a “baby,” previability abortions are referred to as “late-term,” and the reasoned medical judgments of highly trained doctors are dismissed as “preferences” motivated by “mere convenience.

In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court’s defense of the statute provides no saving explanation. In candor, the Act, and the Court’’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court— and with increasing comprehension of its centrality to women’’s lives.

Comments (31)

1

I would like to thank ALL the Nader supporters in 2000 and anyone who voted for Bush in 2000 and 2004 for what the SC did today. This in on your hands. We LOST the opportunity to have a Democratic president appoint TWO justices to the Supreme Court.

And am I still pissed about 2000? Yeah I am. And no I am not going to get over it. I am going to keep spitting and shitting on ANY Green Pary poster I find. Call me out of control but I have a REAL issue with our government taking people's rights away.

So be scared, cause Bush is just going to get worse his last few months in office. And before you know it we will have back alley abortions and garbage bags with fetus' next to the dying mother with a crochet hook sticking out of her. Don't laugh or think I am making that up. It happened before in the USA and is going start happening again.

Keep abortions safe and legal!

Posted by Andrew | April 18, 2007 12:15 PM
2

Keep in mind one salient fact: today's decision explicitly acknowledged, once again, that women have a constitutionally protected right to have abortions. It only takes away access to ONE PROCEDURE.

That may be bad, but this decision makes it even more unlikely that a future court, even a court with one or two more Bush appointees on it, will overturn Roe v. Wade.

The recognition of the core right in question here is now more solid than it ever has been.

Posted by Fnarf | April 18, 2007 12:15 PM
3

I humbly await your pompous, self-righteous spit and shit, Andrew. Very constructive. It's good to know there are people who are better than me and always do exactly the right thing.

Posted by Levislade | April 18, 2007 12:21 PM
4

Fnarf,

It seems pretty clear that the RNC does not intend to go after Roe-v-Wade directly, as this is too dangerous when it comes to pushing away moderate republicans. They hope to simultaneously erode the principles of the RvW judgement while keeping it intact. This way they can both avoid losing moderates and keep their religious base happy / hungry for more.

I point you to this analysis:

http://balkin.blogspot.com/2005/07/reverse-litmus-test.html

Posted by John At Work | April 18, 2007 12:22 PM
5

I hate abortion but I don't think anyone should get to tell anyone else what they can or can't do with their own body.

Posted by monkey | April 18, 2007 12:26 PM
6

The Democrats can vote to overturn this law. Bush will veto it. For the first time, who is President will matter in whether an abortion procedure is legal or not. This will greatly enhance the Democratic prospects for winning the presidency in 2008, and successfully overturning the law once and for all. The Republican Soccer Moms will be jolted out of the comfort zone that allows them to vote Republican. The wedge issue is now ours, and the Republicans are doomed. And we are unified.

Alternately, we can sit around and moan about the 2000 election with Andrew, destroy and divide ourselves, and work towards getting a Republican elected in 2008. That’s what you’re doing Andrew. This is not about you and your feelings. It’s about employing the tactics most likely to succeed to protect our fundamental rights.

Posted by Sid Vicious | April 18, 2007 12:44 PM
7

@3

No matter how hard I try I could never be as pompous and self righteous as people who support Nader. Those are some really pompous folks. They are almost as bad ad the Lyndon LaRouche crowd or the religous right.

Posted by Andrew | April 18, 2007 12:54 PM
8

#4 just like what Washington is doing with gay marriage.

Posted by monkey | April 18, 2007 12:58 PM
9

Andrew,

If you want to continue to pitch a bitch about Nader voters ALL THE WAY BACK IN 2000!!! then MOVE TO FUCKING FLORIDA where it might have made some difference. Because, in Washington State, it didn't, and I for one am sick and tired of this particular whine.

While you're at it, you can stop off in Tennessee and berate those fuckers too - after all, Gore DIDN"T EVEN CARRY HIS OWN FUCKING HOME STATE IN 2000.

Posted by Tlazolteotl | April 18, 2007 1:00 PM
10

@1 - WORD UP!

It's all on you idealist Naderites - thanks for messing up America!

Posted by Will in Seattle | April 18, 2007 1:01 PM
11

Fnarf, the problem with this ban is that it doesn't allow doctors to decide what is the most medically appropriate, safe, and effective treatment for their patients. The Supreme Court is practicing medicine without a license, here.

Posted by Tlazolteotl | April 18, 2007 1:02 PM
12

To everyone that thinks Nader cost Al Gore Florida, and the election, in 2000, perhaps you should fimilarize yourselves with the "decoy effect":

"Many people lavished hate on Ralph Nader for presumably taking votes away from the Democratic front-runner in the 2000 presidential election," said Scott Highhouse, who has studied the decoy effect at Bowling Green State University. "Research on the decoy effect suggests that Nader's presence, rather than taking votes away, probably increased the share of votes for the candidate he most resembled."

Whoops!

Posted by tlmnnity | April 18, 2007 1:12 PM
13

Thanks, Andrew. You managed to frame the discussion about a potentially catastrophic Supreme Court decision in such a way that no one’s talking about how to reverse it. Instead, they’re re-debating the 2000 election.

It’s about women’s right’s. It’s not about you, believe it or not.

Posted by BB | April 18, 2007 1:14 PM
14

this will come up again. it will be years down the line, but some particularly egregious case will be brought before the supreme court, perhaps in more enlightened times, and the patent unconstitutionality of this ban will be challenged and it will be struck down. meanwhile, the media will get to serve us up some horrific "human interest" stories about women who could not get the procedure when it was really necessary. oh, and it won't be "the engagement's off" or "i was just too chicken to do it earlier" both of which i have directly heard from women i met at clinics who were aborting late in their second trimester. so, yes, the casual use of this precedure has brought us to this place where women who have a more serious reason are denied it. share the blame, folks.

Posted by ellarosa | April 18, 2007 1:38 PM
15

Blah... do you actually believe any of you? (Rep or Dem) can control anything? The debate is controlled by people in power; not you. You control the debate, then you can control the outcome of the debate.

Case in point; Kerry didnt' provide a viable alternative to Bush II. (In contrast, the current Democratic Party Leader did). Bush controlled the debate playing on people's fears. Bush won not because he was the better politician/man/president, but because he controlled the debate.

So perhaps Andrew's screaming does have a point; but it has to be screaming with a purpose not screaming for the sake of screaming.

The abortion debate must be controlled by a group. In doing so (controlling the focus of the debate) that group can win the debate, and thus overturn/repeal the current law.

Whether you like it or not, Bush has controlled the debate for the majority of his presidency (up until the point of having a conservative majority on the SC) and as a result, he won.

Get over it, lick your wounds, fix your own problems, then the Dems can control the issues presented.

Posted by T | April 18, 2007 1:54 PM
16

Blah... do you actually believe any of you? (Rep or Dem) can control anything? The debate is controlled by people in power; not you. You control the debate, then you can control the outcome of the debate.

Case in point; Kerry didnt' provide a viable alternative to Bush II. (In contrast, the current Democratic Party Leader did). Bush controlled the debate playing on people's fears. Bush won not because he was the better politician/man/president, but because he controlled the debate.

So perhaps Andrew's screaming does have a point; but it has to be screaming with a purpose not screaming for the sake of screaming.

The abortion debate must be controlled by a group. In doing so (controlling the focus of the debate) that group can win the debate, and thus overturn/repeal the current law.

Whether you like it or not, Bush has controlled the debate for the majority of his presidency (up until the point of having a conservative majority on the SC) and as a result, he won.

Get over it, lick your wounds, fix your own problems, then the Dems can control the issues presented.

Posted by T | April 18, 2007 1:54 PM
17

Er, while I do personally favor overturning the ban (not as a high priority, but still) I think any discussion of how to get there has to start with the fact that 70% of Americans support it.

So, flying in the face of that support doesn't look to me like a good way for Democrats to keep their congressional majorities.

Any other ideas?

Posted by robotslave | April 18, 2007 2:29 PM
18

New York Times: The procedure addressed is known medically as “intact dilation and evacuation” or “D and X,” short for dilation and extraction. It involves partly removing an intact fetus, then destroying the skull to complete the abortion.
http://www.nytimes.com/2007/04/18/us/18cnd-scotus.html?em&ex=1177041600&en=3427ebb38274c478&ei=5087%0A

Things that I would like to know:
1: how does it support the life of the mother to crush the skull of the baby half way out?
2: what does crushing the skull accomplish? are they afraid the baby will live?

Posted by Aaron Ortloff | April 18, 2007 2:38 PM
19

@ 2
Fnarf is correct. Several times throughout the opinion, the Court cites its Casey opinion stating that the Act is not a "substantial obstacle in the path of a woman seeking an abortion[.]" If it were deemed to be such an obstacle, then the undue-burden-from-overbreadth argument would have gained traction. The Court reasoned that there are other procedures available for this stage of the pregnancy and there is much factual dispute among experts whether intact D&E is safer.

The reasoning probably feared by most people that frequent this blog is contained in Thomas' concurrence, joined by Scalia: "I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade (cite) has no basis in the Constitution." If that were the basis of the Court's decision, the concurrence would not have been necessary.

Posted by Kennedy's the new O'Connor | April 18, 2007 3:29 PM
20

@ 18
I'm no expert, but one of the risks with standard D&E is when the Dr. is extracting the pieces of the fetus, there is a repeated risk the uterus wall will be pierced by the instrument or by the pieces of the fetus. By partially delivering the intact fetus, the mother is not subjected to as high a degree of risk of injury.

Posted by Kennedy's the new O'Connor | April 18, 2007 3:44 PM
21

@ 14, Why should it even matter what a woman's reasons are for needing an abortion?

Posted by Eric Grandy | April 18, 2007 4:00 PM
22

So that we know if it was an abortion or infanticide. If it was a nonviable fetus, its one thing.
Thats why I ask what does crushing the skull while the baby is partway out accomplish? If it is to avoid injury to the mother why not take the fetus out completely? The head is the most difficult part when giving birth, I understand. Unless I get new information I must believe that this is a political procedure, not medical.

Posted by Aaron Ortloff | April 18, 2007 4:14 PM
23

@22

You really believe that there are Docs willing to do a procedure just for political purposes?

The term "partial birth abortion" is the the political term created by pro-life advocates.

Not to get all graphic (but this is a graphic debate) but #20 is wrong. The skull is collapsed while inside, with the specific purpose of making its passage easier. That is why it's medically necessary. "Collapsed" is a more accurate term than "crushed" and no, there are no bits of bone or anything since the procedure collapses instead of crushes.

The problem with this debate is that it is graphic. It's graphic no matter what... and hard. But everybody knows that abortion is hard no matter what. The problem is that to use a term like "crush" when it is clearly not "crushed" creates a gutteral reaction in most people. Thus %70 of the country are against it... though they probably aren't willing to really read up on it.

Posted by really | April 18, 2007 4:32 PM
24

21, i didn't say she needed a good reason for getting an abortion--i do believe she should have a good one for getting an abortion at 6 months, tho, as babies that young have survived premature birth. i'm not of the camp that says "anytime, for any reason" and neither is most of the country.

Posted by ellarosa | April 18, 2007 4:35 PM
25

@24 - it's none of your business.

Besides, what is a "bad reason"? Because she doesn't want to live in poverty, her new husband is sleeping around on her, and her parents are both in hospital? Who gets to decide?

News flash. She does. Not you.

Posted by Will in Seattle | April 18, 2007 4:48 PM
26

@ 23 Graphic indeed. Again, no expert, just know what I read. And you're right about the language - very deliberate, very loaded.

Anyway, more graphic discussion below... Tell me where I am wrong.

"The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed." So reads the description of a "standard" D&E in today's opinion.

In contrast, "intact" D&E seeks to avoid the pulling apart, and the bone fragments, by collapsing the skull while the rest of the body has already passed thru and by inducing greater dilation. No?

Posted by Kennedy's the new O'Connor | April 18, 2007 5:02 PM
27

25, no, i didn't decide, the sc did. that's my point. and the sc didn't do so in a social vaccuum, even tho it's supposed to be that way. stop attacking the messenger, will.

Posted by ellarosa | April 18, 2007 5:16 PM
28

andrew@1



I would like to thank ALL the Nader supporters in 2000 and anyone who voted for Bush in 2000 and 2004 for what the SC did today. This in on your hands. We LOST the opportunity to have a Democratic president appoint TWO justices to the Supreme Court.
And am I still pissed about 2000? Yeah I am. And no I am not going to get over it. I am going to keep spitting and shitting on ANY Green Pary poster I find. Call me out of control but I have a REAL issue with our government taking people's rights away.


Dear Andrew. Shut the fuck up! Seriously, shut the fuck up. Gore lost in 2000 because he was a shitty candidate who ran a shitty campaign and managed to lose to a total fucking moron. People like you who blame Nader for Gore's loss are every bit as stupid and ignorant as those who blame Saddam Hussein for 9/11.


Let's see. Did Ralph Nader make Gore pick Joe "Israel Ueber Alles!", Lieberman, a man who made Walter Mondale look dynamic and convivial as vice president? Did Ralph Nader make Gore the most boring and wooden speaker this side of Calvin Coolidge? Did Nader have Gore hire many the same Democratic hacks and consultants that were behind 20 years of Democratic defeats and the loss of Congress in 1994? Did Nader make 200,000 registered Florida Democrats vote for Bush? Did Nader make voters in Tennesee, Gore's home state, vote for Bush?


The answer to all of these questions is no. You and Dan Savage and all of the other Nader haters are a passel of whining, useless, ignorant fucks! Hell, while you're blaming people for Gore's loss in 2000 why not blame the Worker's World party. Those fuckers took 1,804 votes in Florida, perhaps if they hadn't been on the ticket those votes would have gone to Gore and he might have won. Or you could blame the Socialists, who took 622 votes. If those votes had gone for Gore then he would have won the election. Or blame the Socialist Workers, those fuckers got 562 votes, which, if they had gone to Gore would have given him a 19 vote margin. Blame everyone who had the temerity to hold political beliefs to the left of Al Gore and who stood by their convictions and voted on those beliefs instead of mindlessly voting Democratic, but don't blame Al himself or the Democratic party, they're above reproach.


The pig-ignorant stupid, blinkered ignorance of assholes such as yourself is truly astounding What the fuck is it with you and Gore anyways? Are you queer for him? Do you want to jack off over pictures of him in a flight suit or something? Do you want to give him a Lewinsky? I'd like to know why you let him off the hook for being such an incompetent, pathetic hack of a campaigner in 2000. The man ran a lousy campaign, came off as transparently insincere (remember how back in the 1980s Al Gore was pro-life? Remember how Al Gore collected subsidy checks for his tobacco farm while his sister was dying of cigarette induced lung cancer? How about the Clinton/Gore administrations triangulation and backtracking on gays in the military and the Defense of Marriage act?) and he lost to a complete and total fucking idiot. Explain to me again how this is Ralph Nader's fault.


Newsflash shit-for-brains. Politicians like Gore don't have a right to anyone's vote. They don't own any votes. It's up to them to get out there and earn votes by convincing people that they're worth a shit and better than the other candidate. The fact that Gore couldn't earn more votes than George W. Bush (and yes, the Florida elections were corrupted) isn't Ralph Nader's fault, it's his fault and to a certain extent it's the fault of his supporters. Arrogant, condescending, ignorant dogfuckers such as you and Dan Savage, who shit on and berate the Greens for Gore's loss in 2000 aren't going to convince those inclined to vote Green that they should perhaps take a second look at the Democratic party. Oh, and while you're at it if you had a shred of intellectual honesty (I'm not holding by breath waiting for you to find it) then you'd have to admit that were it not for a third party candidate (Ross Perot in 1992) Al Gore WOULDN'T EVEN HAVE BEEN RUNNING FOR PRESIDENT IN 2000!

Posted by wile_e_quixote | April 18, 2007 5:32 PM
29
@24 - it's none of your business.


Besides, what is a "bad reason"? Because she doesn't want to live in poverty, her new husband is sleeping around on her, and her parents are both in hospital? Who gets to decide?

News flash. She does. Not you


Hey Will in Seattle, that's very PC and sensitive new-age-guyish of you. Really, it is. I'll be you're popular with the ladies in a sort of Alan Alda-esque fashion. Here's a question though: Why is it that the feminists who are so adamant that a woman's decision as to whether or not she decides to have an abortion or carry a child to term is no one's business but that woman's and that society has no right whatsoever in the decision are also the very same feminists who insist that if she does decide to keep the kid that society is on the hook for health care, day care, prenatal care, a college education etc, etc, etc, etc, etc? I'll concede that it's none of my business whether or not a woman has an abortion, but hell, why should it be any of my concern to pony up tax dollars to help her take care of the kid if she decides not to have one? Whatever happened to "you breed it, you feed it". Admittedly this question isn't relevant to the discussion, but Hell, neither was Andrew's whiny rant about Nader and I thought that I'd see what I could do to jack up the heat and flame level.


Posted by wile_e_quixote | April 18, 2007 5:57 PM
30

@29 Those beliefs are not at odds with eachother, as they both concern the rights and agency of sentient human beings (read: NOT FETUSES).

And why the caustic response to Will's quite reasonable contribution? Because it was vaguely feminist, and a dude couldn't possibly hold such beliefs in earnest without some pussy-related incentive? NICE.

Posted by Goody Proctor | April 18, 2007 8:48 PM
31

@29, so, you really can't argue with what I said, can you?

Thought so.

Now, to quote Ann Landers, MYOB.

Posted by Will in Seattle | April 18, 2007 11:56 PM

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